Employees, expecting to be transferred to new locations after April 1, have sold old homes and bought or leased new ones. Changes in pay, working conditions, and conditions of employment all have been planned for and relied upon in anticipation of the merger. Millions of dollars of advertising have been targeted toward the April 1, 1987, merger date. And the list of consequences goes on. See Application, Affidavit of Hollis Harris and Exhibit 1 thereof; Affidavit of Robert Oppenlander; Affidavit of Russell H. Heil; Affidavit of Whitley Hawkins; Affidavit of C. Julian May; Affidavit of Jason R. Archambeau. The cost of enjoining this huge undertaking only hours before its long awaited consummation is simply staggering in its magnitude, in the number of lives touched and dollars lost. To assume that enjoining of the merger would do no more than preserve the "status quo," in the face of this upheaval, would be to blink at reality. Under the second interpretation of the stipulation clause-the only interpretation under which the required stipulations would have had meaning-applicants could prevent these losses only by conceding their argument, supported by the great weight of authority, that their dispute with respondents fell under the jurisdiction of the National Mediation Board. On the other side, respondents had no entitlement to such a concession, obtained under these circumstances, from parties that had otherwise indicated their intent to continue to assert the contrary position on the jurisdictional issue. Before the Court of Appeals the unions argued that completion of the merger would moot their claims under the collectivebargaining agreement to System Board arbitration. For the reasons stated above, I doubt that respondents' claims would ultimately prevail. Moreover, preservation of respondents' claims could have been accomplished equitably by a speedier resolution of the jurisdictional issue, rather than by the inequitable last-minute foisting of a Hobson's choice on the applicants. Finally, the employees themselves are protected by Delta's assumption of the Allegheny-Mohawk Labor Protec

tive Provisions, requiring the continuation of certain fringe
benefits, displacement and dismissal allowances for up to four
to five years for employees who lose their jobs or get lesser
paying jobs, moving and related costs for employees required
to move, integration of seniority lists, and binding arbitration
of any dispute relating to the labor protective provisions.
See Allegheny-Mohawk Merger Case, 59 C. A. B. 22 (1972);
Heil Affidavit, ¶6.

Because the stipulation upon which the lifting of the injunc-
tion was conditioned appears to be either unnecessary or ex-
tremely inequitable, depending upon its interpretation, and
because it appears to me likely that at least four Justices
would vote to grant certiorari and that the applicants are
likely to prevail on the merits, I grant the requested stay
of the Court of Appeals for the Ninth Circuit's injunction
and order compelling arbitration before the System Boards,
pending the timely filing and subsequent disposition of a writ
of certiorari in this case.

INDEX

ADMINISTRATIVE SEARCHES. See Constitutional Law, IV, 1.

AFFIRMATIVE-ACTION PLANS. See Civil Rights Act of 1964.

AIR CARRIER TAXES. See Airport and Airway Improvement Act of
1982.

AIRLINE DEREGULATION ACT OF 1978.

Dislocated employees-Airlines' duty to hire-Congress' veto of regula-
tions-Severability of statute. -Act's legislative-veto provision-which
was held to be unconstitutional by District Court, and which provides that
either House of Congress may disapprove Secretary of Labor's regulations
for administration of Employee Protection Program that requires covered
airlines to hire protected employees dislocated by deregulation of commer-
cial air carriers-is severable from remainder of Act. Alaska Airlines,
Inc. v. Brock, p. 678.

AIRLINE MERGERS. See Stays.

AIRPORT AND AIRWAY IMPROVEMENT ACT OF 1982.

Taxes on air carriers-Validity of state tax. -For purposes of Act's pro-
vision exempting from Act's prohibition of discriminatory state or local
property taxes on air carriers any "in lieu tax which is wholly utilized for
airport and aeronautical purposes," a South Dakota tax imposed on air car-
riers on basis of value of their aircraft and providing for allocation of taxes
to airports used by carriers and for use of taxes exclusively for airport pur-
poses was an "in lieu tax" and thus did not violate Act's antidiscrimination
provisions. Western Air Lines, Inc. v. Board of Equalization of S. D.,
p. 123.

ALABAMA. See Appeals, 2.

ALASKA NATIONAL INTEREST LANDS CONSERVATION ACT.

Oil and gas leases-Outer Continental Shelf-Preliminary injunc-
tion.-Section 810(a) of Act, which regulates Federal Government's allow-
ing use, occupancy, or disposition of public lands that would restrict Alas-
kan Natives' use of such lands for subsistence, does not apply to Outer
Continental Shelf; where District Court found that respondents had estab-
lished likelihood of success on merits of claim that Government failed to
comply with Act in granting certain offshore oil and gas leases, but held
that preliminary injunction against exploratory drilling was inappropriate,

ALASKA NATIONAL INTEREST LANDS CONSERVATION ACT-

Continued.

Court of Appeals erred in directing issuance of a preliminary injunction.
Amoco Production Co. v. Gambell, p. 531.

ALIENS. See Immigration and Nationality Act.

APARTMENT SEARCHES. See Constitutional Law, IV, 2, 5.
APPEALS.

1. Intervention of parties-Appealability of order. -A federal district
court order granting permissive intervention but denying intervention as
of right-such as an order allowing respondent nonprofit organization,
whose members lived near a hazardous waste dumpsite, to become a per-
missive intervenor, subject to specified conditions, in an action by United
States and a State against owners, operators, and users of dumpsite, but
denying request to intervene as a matter of right—is not a final order under
28 U. S. C. § 1291 and thus is not immediately appealable. Stringfellow v.
Concerned Neighbors in Action, p. 370.

2. Penalty for unsuccessful appeal-Diversity actions-State statute. —
An Alabama statute-requiring an appellate court, upon affirming a money
judgment without substantial modification, to impose a 10% penalty on any
appellant who had obtained a stay of that judgment by executing a bond-
has no application to judgments entered by federal courts sitting in diver-
sity actions; such actions are governed instead by Federal Rule of Appellate
Procedure 38, which affords federal courts of appeals plenary discretion to
award damages to an appellee upon determining that appeal is frivolous.
Burlington Northern R. Co. v. Woods, p. 1.

ARBITRATION OF LABOR DISPUTES. See Federal Employers' Li-
ability Act; Stays.

ARRESTS. See Civil Rights Act of 1871.

ASYLUM FOR ALIENS. See Immigration and Nationality Act.

AUTOMOBILE WRECKING YARD SEARCHES. See Constitutional
Law, IV, 1.

BANKRUPTCY.

Amendments to Bankruptcy Rules, p. 1077.

BARN SEARCHES. See Constitutional Law, IV, 3.

BINGO GAMES. See Pre-emption of State or Local Law by Federal
Law, 1.

BONDS. See Appeals, 2.

BURDEN OF PROVING SELF-DEFENSE. See Constitutional Law,

I, 3.

CABLE TELEVISION SYSTEM'S USE OF UTILITY POLES. See
Constitutional Law, V, 1.

CALIFORNIA. See Pre-emption of State or Local Law by Federal
Law.

CARRIERS. See Airline Deregulation Act of 1978; Airport and Airway
Improvement Act of 1982; Stays.

CERTIORARI.

Dismissal-Improvident grant of writ.-Writ of certiorari, earlier
granted to resolve question whether a municipality can be held liable under
42 U. S. C. § 1983 for inadequate training of its employees, was dismissed
as improvidently granted, since case did not, as originally contemplated,
present related question whether more than negligence in training is re-
quired to establish such liability. Springfield v. Kibbe, p. 257.
CHILD-ABUSE PROSECUTIONS. See Constitutional Law, I, 1.
CIVIL RIGHTS ACT OF 1871. See also Certiorari.

Agreement not to sue-Enforceability.-Where (1) respondent was ac-
cused of state-law felony of tampering with a witness (victim of an alleged
sexual assault by defendant in another prosecution), (2) respondent signed
an agreement whereby prosecutor dismissed charges against respondent,
who released any claims he might have against town, its officials, or victim
for any harm caused by his arrest, (3) respondent later filed this action
under 42 U. S. C. § 1983, alleging that town and its officers had violated
his constitutional rights by arresting, defaming, and imprisoning him
falsely, and (4) District Court dismissed action on basis of release-dismissal
agreement, question whether § 1983's policies render a waiver of right to
sue thereunder unenforceable was one of federal law; mere possibility of
harm to a criminal defendant's and society's interests did not call for a per
se rule invalidating all such agreements; and District Court's decision to
enforce agreement here was correct. Newton v. Rumery, p. 386.
CIVIL RIGHTS ACT OF 1964.

Employment discrimination-Affirmative action plan-Promotion of
female employee. -Respondent Transportation Agency's affirmative ac-
tion plan, which authorized consideration of sex as one factor in hiring
and promoting women in job classifications where they were underrepre-
sented, and which had long-term goal of attaining work force whose compo-
sition reflected proportion of women in area labor force, was consistent
with Title VII of Act; Agency appropriately took into account a woman em-
ployee's sex in promoting her instead of petitioner, a male employee who
was otherwise equally qualified for promotion. Johnson v. Transportation
Agency, Santa Clara County, p. 616.

COAL MINING. See Constitutional Law, V, 2.